The applicant's case in relation to unfairness, can be distilled to the following grounds:
1. The applicant was dismissed on the incorrect basis that she had contravened the Second PHO;
2. The applicant was dismissed for failing to comply with the Determination which was not a lawful and reasonable direction;
3. The dismissal was procedurally unfair; and
4. The dismissal was harsh.
The applicant also submitted that the Policy was unlawful and unreasonable and thus is not an obstacle for the Commission to exercise its' discretion to order the remedy of reinstatement or re-employment should there be a finding of unfairness.
It is convenient to firstly deal with each ground advanced by the applicant in relation to unfairness separately.
[2]
No requirement under the PHO's to be vaccinated
The applicant contended under this ground, that the applicant was compliant with the PHO's however the respondent believed she wasn't and this was the reason why she had to show cause as to why her employment should not be terminated and she was ultimately dismissed.
In support of the contention that the applicant was compliant, the applicant firstly relied on the reasoning of Beech-Jones CJ in Kassam v Hazzard [2021] NSWSC 1320. In particular the applicant relied upon that part of the decision in which his Honour determined that the Public Health Orders requiring persons to be vaccinated if leaving an area of concern or entering a construction site, did not "authorise the involuntary vaccination of anyone", nor impair a person's autonomy over their own body.
The effect of the applicant's contention on this ground, was that the obligation under the First and Second PHO was placed on the respondent to not permit the applicant to work, which they did by directing her not to work. She then submitted, that by remaining unvaccinated, she was not in breach of or "non-compliant" with the Second PHO and that she was always compliant with the First and Second PHO because she did not work as a health care worker whilst unvaccinated.
On this ground, the applicant further contented that the respondent's assertion that the employee is failing to make themselves available for work or is unable to work elides the work-wages bargain is flawed. The applicant in support of this contention made the following submission:
17. The fundamental nature of the master and servant relationship is that a servant earns wages "for the service reasonably demanded" by the master: Automatic Fire Sprinklers v Watson (1946) 72 CLR 435 (Automatic Fire Sprinklers) at 466. In Automatic Fire Sprinklers, it was also observed at 466 that "They also serve who only stand and wait" and therefore "A master who sends his servant upon a holiday upon full pay can be sued for wages under the contract". The Respondent's assertion that the employee is failing to make themselves available for work or is unable to work elides the work-wages bargain. It places the burden entirely on the worker without recognising that a worker only does work if she is directed or required to do so by her employer. Properly read, the words in clause 6 and clause 5 mean that at no stage could the employer require the unvaccinated employee to perform work. The words "A health care worker must not do work as a health care worker unless the worker has received at least 2 doses of a COVID-19 vaccine" contain a prohibition upon the employer and curtails the right of the employer to direct the worker to "do work" unless the worker is vaccinated. Clause 6 confirms that this is so.
As to being terminated on the ground of non-compliance with the Second PHO, the applicant pointed to the evidence of Ms Mc Leish that she believed that the applicant was not compliant with the Second PHO and this is the understanding that she applied to recommending the termination of the applicant's employment.
The respondent asserted that the applicant was not terminated for misconduct or wrongdoing, rather, pursuant to cl 5 of the Second PHO she was not permitted to perform any work.
It was contended by the respondent that the reason for dismissing the applicant was that as at the date of termination, the applicant had not been able to work for just over two months and there was no expectation that she would be able to do so in the foreseeable future.
In relation to the applicant's submission as to the evidence of the respondent's witnesses in relation to non-compliance with the Second PHO, the respondent's submission was to the effect that these witnesses were simply responding to propositions put in cross examination.
The respondent submitted that the reason was valid in that it was sound, defensible and well-founded and was consistent with the finding of Commissioner Sloan in Cromie v Health Secretary in respect of the Illawarra Shoalhaven Local Health District [2022] NSWIRComm 1064 and Commissioner Webster in Adriano v Secretary, Ministry of Health in respect of South Eastern Sydney Local Health District [2022] NSWIRComm 1082.
In reply, the applicant put that the respondent's position was inconsistent with the respondent's own witnesses, both of whom gave evidence under cross examination that the applicant was terminated for failing to comply with the Second PHO and also the Determination.
Furthermore, the applicant submitted that due to the 90 day time limitation of each PHO by application of s 7(5) of the Public Health Act 2010 and confirmed in Larter v Hazzard [2022] NSWCA 238 at [25], there could not be any expectation by the respondent that the requirements under the Second PHO would be extended and would at some stage come to an end.
Central to the determination of this ground, is what role did the Second PHO have in relation to the dismissal?
The following statements were made in the 26 August 2021 communication from Mr Minns to all staff after the First PHO was made:
Given the situation we are now facing with the current COVID-19 outbreak and the extremely contagious nature of the Delta variant, a Public Health Order will now require the vaccination of NSW Health staff to ensure the safety of our people and patients across the State.
Mandatory COVID-19 vaccination will now be required for all NSW Health staff with first vaccination required by 30 September 2021 and second vaccination by 30 November 2021 in order to continue to work for NSW Health.
The document that was sent to all employees called "From the Desk" included the following statement regarding the First PHO:
The Public Health Order requires all Health care workers to have a first dose of COVID-19 vaccine by 30 September 2021 and a second dose by 30 N0vember 2021 to continue to work for NSW Health.
The communication entitled "Frequently Asked Questions-Mandatory Vaccinations for Healthcare Workers" of 3 September 2021 which was sent to all employees provided the following explanation of the First PHO:
Has a Public Health Order been made?
Yes. The Public Health (COVJD-19 Vaccination of Health Care Workers) Order 2021 has been made.
Health care workers will need to have received at least one dose of a COVID-19 vaccine by 30 September 2021 and two doses by 30 November 2021 to continue to work for NSW Health or a Private Health Facility (licensed under the Private Health Facilities Act).
Later it goes on to explain the consequences of not meeting the vaccination requirements as follows:
What happens if I decide not to be vaccinated?
NSW Health is required to comply with the requirements of the Public Health Order and to manage risks associated with unvaccinated staff appropriately. NSW Hea!th requires staff to comply with the Public Health Order. If you do not meet the COVID-19 vaccination requirement on the date it applies, or do not have an approved medical exemption, then you cannot continue to work within NSW Health or a Private Health Facility (licensed under the Private Health Facilities Act).
In an email to the applicant on 21 September 2021, the applicant was informed that the First PHO worked in the following way:
Pursuant to the Public Health {COVID-19 Vaccination of Health Care Workers} Order 2021 (PH Order), mandatory COVID-19 vaccination will now be required for all NSW Health staff with first vaccination required by 30 September 2021 and second vaccination by 30 November 2021 in order to continue to work for NSW Health.
The above explanation of the PHO was repeated in a letter sent by the respondent to the applicant on 23 September 2021.
In the First Show Cause Letter, the applicant was informed that the obligation under the First PHO operated in the following way:
I refer to previous correspondence notifying you of your obligations under the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (PH Order). This correspondence advised you how to comply with the PH Order and provided you with notice that you would not be able to continue to work at Murrumbidgee Local Health District if you did not comply with the PH Order by 30 September 2021.
It is apparent that the applicant considered that she was in line to be dismissed for alleged failure to comply with the Second PHO when in her reply to the First Show Cause Letter she stated:
The letter states that I am not in compliance with the public health order (Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021). That overarching statement is not the entire truth of the matter.
While it is true that I have not provided to NSW Health proof that I have received of a COVID-19 vaccination, or provided NSW Health with evidence of a medical contra indication (on the approved form and which has been accepted by the Chief Health Officer), I am not performing any 'work' as defined by the public health order. Therefore, I am not in breach of the public health order…………
The Second Show Cause did not seek to disavow the applicant of her understanding of how the First PHO worked. In reference to the First Show Cause letter it further stated:
That letter set out obligations under the Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021.
The brief prepared for the CEO of the respondent to consider the applicant's employment in early December 2021 was titled "Termination of employment due to non-compliance with COVID-19 vaccination requirements".
Then The letter of termination stated that by not providing evidence of COVID-19 vaccination or a medical contraindication the applicant had failed to comply with the First and Second PHO.
The clear and unequivocal evidence of the respondent's witnesses was that one of the reasons that the applicant was dismissed was because she was not compliant with the Second PHO. I particularly note the evidence of Ms McLeish that when recommending dismissal, in part she relied upon her belief that the applicant had contravened the PHO's.
As evidenced by her reply to the First Show Cause Letter, the applicant was also of the understanding that her employment may be terminated for what the respondent considered to be her non-compliance with the First and Second PHO.
The body of evidence referred to immediately above leads to the most obvious conclusion that one of the reasons the applicant was dismissed was because of her alleged non-compliance with the Second PHO.
It is uncontroversial that the First and Second PHO did not require the applicant to become vaccinated against COVID-19, rather it placed an obligation upon the employer to prohibit the applicant from performing work until she became vaccinated or received a medical contraindication.
Thus to terminate the applicant on the ground of non-compliance with the Second PHO is flawed and accordingly unjust.
[3]
The Direction was unlawful
By the time of the closing submissions, the applicant advanced three bases upon which she contended the Determination was unlawful and unreasonable, all of which were when considered alleging unlawfulness and not unreasonableness.
Before turning to these grounds, it is first necessary to deal with the respondent's submission that the validity of the Determination is not a matter for the Commission to determine.
The respondent made the following submissions in support of the proposition that the Commission cannot consider the validity of the Determination:
The validity of the Determination (as to whether it is a valid exercise of the power conferred in s. 116A of the HS Act), as noted by Murphy C in Griffin and others [2022] NSWIRComm 1027 at [37], is not a matter for the Commission to determine in its unfair dismissal jurisdiction. As Beech-Jones CJ said in Kassam in relation to the comments of Deputy President Dean of the Fair Work Commission in Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015 with respect to the validity of a public health order made under the Public Health Act: '…The function of determining its validity is for this Court to discharge and the function of determining whether it should have been made is for the political process. The Fair Work Commission has neither function'.
As to Murphy C's observations in Griffin, the applicant relied on the following passage in the decision of Sloan C in Cromie v Health Secretary in respect of Illawarra Shoalhaven Local Health District [2022] NSWIRComm 1064:
[21] With respect, the Commissioner's statement that "it is not open to the Commission...to go behind the Health Determination" must be approached with caution. If a case is presented that a dismissal was unfair on the basis that it was the consequence of a determination made pursuant to s 116A of the Health Services Act which is alleged not to be lawful and reasonable, for example, the Commission can and should consider that case. Section 116A confers no particular protection against scrutiny of the Secretary's decisions.
The first basis advanced by the applicant as to why the Direction was unlawful, was that when read in context, s 116A in its' entirety requires the consent of the relevant unions as set out in ss 116A(3) and no such consent was provided.
The second basis relied on by the applicant in relation to the Direction being unlawful, is that it unilaterally varied the conditions of employment of the applicant.
The applicant's third basis as to the unlawfulness of the Determination was that the Vaccination Requirement did not constitute a "condition of employment" for the purposes of s 116A.
It was submitted that a "condition of employment" contemplates that employment will be ongoing and subject to that condition, rather than being that the employment will not commence unless the employee carries out an action antecedent to the employment. Along these lines, the applicant contended that the Determination can cover incoming employees, but can't be used to terminate existing employees.
The fourth basis advanced by the applicant was that the Determination is invalid because it replicates the PHO requirements in circumstances where s116A provides that the Health Secretary may fix conditions only 'insofar as they are not fixed by or under any other law'.
In reply the respondent firstly noted that four members of the Commission have considered the Determination to be valid:
1. Murphy C in Griffin at [49];
2. Muir C in Gareth Peck v Secretary, NSW Health in respect of the Hunter New England Local Health District [2022] NSWIRComm 1059 who found the Determination to be a lawful and reasonable direction at [48];
3. Sloan C in Cromie at [24]; and
4. Webster C in Adriano at [26].
The respondent submitted that the power under s116A(1) to fix conditions of employment stands alone and is not one which relies on 116(2)-(3).
In support of this submission, the respondent relied upon the findings of Walton J in Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431 as to the purpose and history of s116A of the Health Act and in particular, the following paragraphs:
[143] The power in s 116A(1) of the HS Act is a distinct and separate power to the power to enter into contracts of employment. This is clear from the ordinary and natural meaning of the text and its purpose. This view is also confirmed by the legislative history and past authorities of the Commission.
[144] As set out above, s 116A(1) of the HS Act gives the Secretary the power to "fix" salary, wages and conditions of employment. This is a power that the Secretary can exercise unilaterally, which is very different to a power to contract which requires mutual assent by two parties manifested in the making of an offer by one party and its acceptance by the other. The Secretary may also be able to change the salary, wages and conditions of employment unilaterally at any time, which is also very different to a contract of employment which requires the mutual assent of the parties unless it provides otherwise.
[146] The purpose of the power in s 116A(1) is "to ensure a high measure of consistency in a large and diverse public sector organisation": NSW Nurses' Association v Sydney Local Health District [2012] NSWIRComm 52 at [102] (Boland J, President). It is clear that a determination by the Secretary under this power is intended to set conditions that could cover the entire workforce or a very large cross-section of it. This only highlights how separate and distinct it is from the power to enter into contracts of employment. Under the doctrine of privity of contract, any contract can only bind the contracting parties (that is, the Crown and the relevant individual employee) and could not affect the legal rights of other employees.
The respondent also submitted that the approach detailed above by Walton J is consistent with the legislative history of s 116A and its' similarity with the like provision in s.4E(1) of the Public Sector Employment and Management Act 2002 (NSW).
As to the Determination and the conditions of employment, the respondent argued that conditions of employment can include mandatory pre-requisites to employment and ongoing mandatory qualifications necessary for the employment. They referred to examples of a childcare worker that must have and hold a valid working with children check and a truck driver must hold a relevant heavy vehicle license.
The respondent then proceeded to make the following submission concerning the Determination fixing a condition of employment:
83. As noted in Health Administration Corporation and others v Crocker and others [2004] NSWIRComm 163 at [10], the HS Act and the IR Act were enacted in circumstances that they may be considered to be 'cognate'.
84. To that end, the words 'may fix the salary, wages and conditions of employment' in s.116A(1) are to be construed broadly, consistent with the definition of 'conditions of employment' and the definition of 'industrial matter' in ss 4 and 6 of the IR Act. There is no reason to think that questions of vaccination, which can be (and have been for many years) addressed by policy are not conditions of employment within the broad meaning of the IR Act.
85. Further, just as it is an 'industrial matter', matters that relate to workers' health and safety can be 'conditions of employment' as they regulate the nature of part of the relationship between employee and an employer - see Re Operational Ambulance Officers (State) Award [2001] NSWIRComm 331; (2001) 113 IR 384 at [186].
As to the conditions of employment in the Determination already set in the Second PHO, the respondent submitted that the Second PHO were not made for the purpose of (and did not have the effect of) fixing conditions of employment for employees of the respondent.
The respondent further submitted that the Second PHO were temporary orders made by the Minister for Health and Medical Research pursuant to s. 7 of the Public Health Act 2010 (NSW) for the purposes of dealing with a risk to public health and accordingly are not conditions of employment.
In considering the respective arguments concerning the Determination, it is appropriate to set out s116A.
Dealing firstly with the respondent's contention that the Commission does not have the jurisdiction to consider the validity of the Determination, the decision of Kassam relied upon by the applicant deals with the Fair Works Commission's jurisdiction in relation to the PHO's and not the Determination.
Although both the PHO's and the Determination are instruments made pursuant to statute, there is a stark difference between them, particularly when regard is had to the criminal consequences for contravention of a PHO. In this regard, Kassam does not support the position advanced by the applicant.
I agree with the findings of Commissioner Sloan in Cromie that the Commission is able to consider the validity of the Determination when raised by an applicant in an unfair dismissal application.
As the applicant has brought into question the validity of the Determination, I am required to consider the applicant's contentions in this regard.
As to the first basis as to unlawfulness raised by the applicant, the interpretation advanced is contrary to a plain and ordinary reading of the provision.
Each of sub-sections (1) and (3) under 116A, contemplates a different basis upon which the respondent can make a determination, either by unilateral change of conditions of employment as in 116A(1) determined by Walton J in Paramedics or in 116A(3) by agreement with an association or group of employees.
The second basis advanced by the applicant, if accepted would result in a perverse outcome that for new employees requiring vaccination, whether it be for Covid-19 or otherwise, would constitute a condition of employment for the purposes of a determination under s 116A(1), but not for existing employees.
I accept the respondent's submissions that it does constitute a condition of employment, just as any other change to the requirement to perform work set by legislative instrument or professional bodies do.
Also, the second basis is at odds with the finding in Paramedics above at [114], that the power under 116A(1) permits a unilateral variation to the salary, wages and conditions of employment at any time.
As to the third basis advanced by the applicant regarding the Determination, it is reliant on the proposition that the obligations under the Second PHO, properly considered, constitute a condition of employment.
The obligation under the Second PHO, as determined above and consistent with the applicant's submission was to place a prohibition on employers, including the respondent, from permitting health workers to perform work unless they met the Vaccination Requirements. It was in place for no longer than 90 days and as submitted by the respondent was brought about for the purpose of dealing with a risk to public health and accordingly are not conditions of employment.
Given the conclusions I have reached in relation to each of the bases advanced by the applicant in relation to the lawfulness of the Direction, I find that the Direction was lawful and accordingly the applicant has not made out this ground.
[4]
Procedurally Unfair
The applicant submitted that she was not afforded procedural fairness because she did not have notice of the fact that the Chief Executive would consider the Determination as part of the formal dismissal process defined by the show cause notice.
It was further submitted by the applicant that she was unaware of the actual factors which the Chief Executive would consider in terminating her employment. The Applicant went on to submit that absent the provision of the above information, she was unable to make a case in reply.
It was also submitted that it was procedurally unfair in that the respondent failed to take into account the matters raised by the applicant when the respondent was considering whether to dismiss the applicant. Further, the applicant submitted that in the absence of the respondent calling the Chief Executive a Jones v Dunkel inference could be drawn regarding the consideration of the matters raised by the applicant.
The respondent pointed to the Second Show Cause Letter which included reference to and attached the Determination and submitted that there were no other factors, absent those that the applicant was informed of which were taken into account for the termination of the applicant's employment.
As to the matters considered by the Chief Executive, the respondent relied on the evidence of Ms McLeish that the Chief Executive considered all the materials in the termination brief, including the applicant's response to the First Show Cause Letter and also considered the applicant's individual circumstances.
As to the Jones v Dunkel inference, the respondent submitted that the drawing of such an inference is not open to the Commission. In support of this contention, the respondent pointed to the absence of any material put by the applicant, such as evidence or outlines of submissions, putting the respondent on notice that the Chief Executive ought to be called.
Dealing firstly with the Jones v Dunkel inference, it is trite law that the rule only has application when certain conditions exist. These conditions are first, whether the uncalled witness would be expected to be called by one party rather than the other; secondly, whether his or her evidence would elucidate the matter; thirdly, whether his or her absence is unexplained (see RHG Mortgage Ltd v Ianni [2015] NSWCA 56 at [76]).
The applicant had not put in her application, evidence nor in her outlines of submissions prior to the hearing that she was advancing a case based on procedural fairness nor, that she was contending that the respondent had failed to consider her response to the First Show Cause letter. Given this, there could have been no basis for the respondent to consider that the Chief Executive should have been called and thus there is no basis for drawing the inference.
As to the failure to put the applicant on notice of the matters that would be considered by the respondent including the Determination, this submission has no evidentiary basis. There were no matters relied upon by the respondent that the applicant was not informed of which came to light during the case. As to the Determination, the applicant in the Second Show Cause Letter was informed it was to be relied upon and was provided a copy of it.
As to the failure to take into account the matters raised by the applicant, it is important to note that she failed to respond to the Second Show Cause Letter and therefore on one level there was nothing to consider. Notwithstanding this, the evidence of Ms Mc Leish provides a sufficient basis for me to find that the respondent did, in any event consider the applicant's response to the First Show Cause letter as well as the applicant's individual circumstances.
Given the above, I am not satisfied that the applicant has made out the procedural fairness ground.
[5]
Harsh
The dismissal was otherwise harsh in view of the Applicant's unblemished and longstanding record of service and significant hardship arising from the termination of her employment.
For its' part, the respondent submitted that the Commission as currently constituted found in Welch v Commissioner of Police [2023] NSWRComm 1002 at [74-75], that in balancing all matters that the dismissal of the applicant is justified.
Almost all dismissals will occasion hardship upon an individual who has been removed from their employment, but that does not make all dismissals harsh to the level that it renders that dismissal unfair. As I found in Welch it is a matter of weighing up all the circumstances, including the reason(s) for the dismissal as well as the impact upon on the applicant.
In this matter, the applicant found herself in the same situation as all other employees who were faced with the prospect of meeting COVID-19 vaccination requirements to maintain her employment. For her own personal reasons, which have no bearing on my consideration of her application, she chose not to. Given this, the harshness visited upon herself is partly a consequence of her own choice and thus does not render the dismissal harsh for the purposes of the IR Act.
[6]
Disposition
Although the applicant has made out her first ground, i.e. that the decision to dismiss on the failure to comply was unjust, the Determination provided a proper basis for the dismissal and the dismissal was not procedurally unfair nor harsh. Overall, for the reasons set above, I find that the dismissal not unfair for the purposes of the IR Act.
As the applicant has not made out that the dismissal was unfair there is no need to consider the submissions concerning the Policy and, I make the following order:
1. the application is dismissed
[7]
Amendments
03 July 2024 - Corrections made to cover sheet
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 July 2024
Parties
Applicant/Plaintiff:
Larter
Respondent/Defendant:
Health Secretary in respect of Murrumbidgee Local Health District
Legislation Cited (4)
Public Sector Employment and Management Act 2002(NSW)
It is appropriate at this point to deal with the applicant's submission to admit further evidence as to the decision to remove the requirement of workers to be vaccinated and the purpose of the admission.
The applicant contended that the evidence of the Recission should be accepted and that it was relevant both as to the determination of unfairness and remedy.
In support of the contention that the Recission was relevant to the determination of unfairness, the applicant submitted that the respondent unreasonably failed to consider alternatives to dismissal, such as taking leave during the period between the First PHO and the Recission. The applicant calculated that his accrued leave was sufficient to allow him to be absent from the workforce suggesting that the Determination was unreasonable. It pointed out that these submissions were directly relevant to the contention already made in its closing submissions that there were alternatives to dismissal and thus the Determination was unreasonable.
The respondent firstly submitted that evidence of the Rescission should not be accepted as evidence by the Commission for reasons including that the material was not relevant to the determination of unfairness and that extenuating circumstances did not exist so as to warrant the granting of leave to admit this evidence.
Curiously, the respondent submitted that the Recession may be relevant to the issue of remedy
As to the question of relevance of the Recission vis a vis the issue of unfairness, the respondent relied upon Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 to argue that the determination of whether unfair dismissal occurred is decided with reference to the circumstances as they existed at the time of the dismissal. It also referred to Bankstown City Council v Paris (1999) 100 IR 363; Starr v Commissioner of Police [2001] NSWIRComm 226; Alexander v Commissioner of Police [2009] NSWIRComm 3; and Rowland v Austar Coal Mine Pty Ltd [2010] FWA 8011.
In its her further submissions in reply, the applicant attempted to distinguish these authorities by contending that the facts under present consideration are distinctive in that a change to an existing policy occurred, rather than the emergence of a new fact. The respondent, on the applicant's reasoning, should have known that the Determination would eventually be amended or rescinded, making the Recission relevant to the facts at the time for the purposes of determining this unfair dismissal application.
Firstly, I accept the admission of the evidence of the Recission and in doing so note that it was the respondent who brought the possibility of the Recission to the attention of the Commission. Further the Commission considers that the Receission could be relevant to any consideration of remedy, but for the following reasons finds that it is not relevant in relation to the determination of unfairness.
The Commission does not accept the reasoning advanced by the applicant. Even if the applicant's claim that the respondent should have known that the Determination would change is correct, there is no way the respondent could have known when any such recission could have taken place. No aspect of the Recission was a fact the respondent could have known at the time of the dismissal beyond a general apprehension that the Determination was impermanent and may be amended at some time in the future. To attempt to include the Recission in the facts that may be relied upon as forming part of the circumstances surrounding the dismissal is to place more weight on this general apprehension than it will bear, and the Commission consequently accepts the relevance of the respondent's line of authorities. Accordingly, the evidence of the Recission is not relevant to the unfairness of the dismissal.